XIPOLITAS v AUBURN UNITED PTY LTD SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL MAHONEY JA 27 February 1995 [1995] NSWCA 528 Mahoney JA. This matter comes before the court because, although an appeal was lodged in October 1991 and the index settled in July 1992, no appeal books were filed. The matter was listed before Cole J on 21 November 1994 and, there being no appearance for the appellant, his Honour directed that the appeal be struck out for want of prosecution. The appellant now applies to this Court for an order restoring the matter to the list, that is, reversing the order striking out the appeal. It appears that a new solicitor had been engaged by the appellant as long ago as the early part of 1994. There had been correspondence with the Government Printing Office in relation to the matter and the preparation of the appeal books had been sought. The matter does not appear to have been followed up with great diligence, but there may possibly have been reasons for this. In any event, the solicitor deposes to the fact that the notice that the matter would be listed on 21 November 1994 was not sent to that solicitor. The reason for that would appear to be that that solicitor had failed himself to prepare a notice ofchange of solicitor, so that he, and not the previous solicitor, was the solicitor on the record to whom notices should be sent. The matter seems to have been the subject of less than fully perfect attention on the part of the solicitors involved. I think it is necessary that the matter now be brought to a head. In the circumstance that the notice was not given to the person who was, in fact, then the solicitor, which establishes a proper reason for setting aside the order striking out the appeal which was made on 21 November 1994, I will direct that the appeal be reinstated. However, I feel that something must be done to bring the matter to a head and done in short order. Ihave indicated to the parties, and they have urged nothing against this course, that I propose to direct that the matter be returned to the Registrar to give directions as to the pursuit of the appeal by, inter alia, the preparation of the appeal books as soon as may be and the listing of the appeal for hearing. The Registrar will give a direction upon such matters as appear to him, on investigation, to be appropriate. I indicate that if those directions are not carried out on behalf of the appellant according to their terms, then the matter should be returned to the judge dealing with the motions in order to consider whether the appeal should be struck out for want of due prosecution. In the circumstances, I think it appropriate to direct that the costs of the application be paid by the appellant. Orders accordingly.